Malm v. Gonzales ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1678
ABLAVI DJIDJO MALM,
Petitioner - Appellant,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
01-3159-CCB)
Argued: May 24, 2005 Decided: October 12, 2005
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Morton Harvey Sklar, Executive Director, WORLD ORGANIZATION
FOR HUMAN RIGHTS USA, Washington, D.C., for Appellant. Ernesto
Horacio Molina, II, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration
Litigation, Washington, D.C., for Appellee. ON BRIEF: Matthew
Packer, Legal Intern, Severina Rivera, Volunteer Attorney, Sapna
Lalmalani, Legal Intern, WORLD ORGANIZATION FOR HUMAN RIGHTS USA,
Washington, D.C., for Appellant. Peter D. Keisler, Assistant
Attorney General, David V. Bernal, Assistant Director, UNITED
STATES DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration
Litigation, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Ablavi Gloria Malm appeals the denial of her 28 U.S.C.A. §
2241 (West 1994) petition by the district court, arguing that the
Convention Against Torture (CAT) and its implementing statutes do
not permit limitations on the time within which to file claims and
that her due process rights were violated during her removal
hearings. We treat Malm’s appeal as a petition for review of her
final order of deportation and deny the petition because collateral
estoppel bars Malm from relitigating these issues.
I.
Malm is a native and citizen of Togo who entered the United
States on October 29, 1994, on a visitor’s visa. Malm applied for
asylum on October 20, 1997, alleging that she had been raped and
tortured in Togo by government officials. Malm’s asylum hearing
was scheduled for April 15, 1998, but she did not appear. The
hearing was held in absentia, and Malm was ordered removed. Malm
filed a motion to reopen on July 24, 1998, alleging that she did
not receive notice of the hearing because a paralegal that was
assisting her with the case did not inform the Immigration Judge
(IJ) that Malm had moved. On September 10, 1998, the IJ denied the
motion to reopen, finding that notice of the hearing had been sent
to Malm’s last known address, and that Malm failed to show
extraordinary circumstances justifying her failure to appear. The
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IJ also noted that Malm’s motion to reopen was filed more than 90
days after the removal order and therefore was out of time.
Malm filed an appeal with the Board of Immigration Appeals
(BIA), alleging that ineffective assistance of counsel caused her
failure to appear. Malm’s appeal was denied on February 7, 2000,
with the BIA concluding that Malm could not satisfy the ineffective
assistance of counsel standards announced in Matter of Lozada, 19
I. & N. Dec. 637 (BIA 1988), because Malm’s representative was
neither an attorney nor authorized to appear before the BIA. Malm
then filed with this court a petition for review which we dismissed
as untimely.
On May 26, 2000, Malm filed a second motion to reopen with the
BIA, requesting asylum and relief under CAT. On September 28,
2000, the BIA denied this motion under 8 C.F.R. § 3.2(c)(2) (2000),
which provided that a party may file only one motion to reopen
absent changed circumstances.1 The BIA also found that the motion
to reopen was untimely under § 3.2(c)(2), which requires any motion
to reopen be filed within 90 days of the final administrative
decision.
Malm filed a timely petition for review in this court from the
denial of her second motion to reopen. Oral argument was held, and
we affirmed the BIA’s decision by unpublished opinion. Malm v.
1
This section has been recodified without substantive change
at 8 C.F.R. § 1003.2(c)(2) (2005).
4
Ashcroft, 2001 U.S. App. LEXIS 18178 (4th Cir. August 10, 2001).
Before this court, Malm argued that she was not given an
opportunity to present her claims for asylum and that § 3.2(c)(2)
violated CAT and its implementing statutes. Article 3 of CAT
provides that “no State Party shall expel, return (‘refouler’) or
extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected
to torture.” The United States is a signatory party to CAT, and
implemented Article 3 in the Foreign Affairs Reform and
Restructuring Act of 1998 § 2242(d) (FARRA), 8 U.S.C.A. § 1231(West 1999). Malm argued that because CAT “prohibits a return to
torture under any circumstance . . . the time and numerical
limitations of the INS administrative regulations cannot be relied
upon to deny at least one full and fair opportunity to have a CAT
claim properly considered.” Malm, 2001 U.S. App. LEXIS 18178 at
**5.
Although we noted that “Malm raises troubling allegations of
abuse and violence,” we affirmed the BIA’s denial of her second
motion to reopen. Id. at **4. First, we found that “her
procedural predicament was caused by her own failure to timely
pursue relief.” Id. at **6. Thus, we concluded that Malm had a
fair opportunity to pursue relief under CAT, and simply “repeatedly
missed available opportunities” to do so. Id. at **9-10. We then
5
found that neither CAT nor FARRA precluded the INS from adopting
reasonable time limitations on raising CAT claims. Id. at **11.
On October 22, 2001, Malm filed a petition for writ of habeas
corpus pursuant to § 2241 in the United States District Court for
the District of Maryland. Malm contended that § 3.2(c)(2), the
limitation on filing more than one motion to reopen, as applied in
her case, violated CAT and FARRA, which she alleged include no time
limitations on the obligations of State parties to retain persons
in jeopardy of being tortured, and that it also violated her due
process rights to have her CAT claim heard. The district court
denied Malm’s § 2241 petition. The district court first concluded
that it did not have subject matter jurisdiction over the petition
because Malm had alternate judicial forums in which to raise her
claims.2 In the alternative, the district court found that
collateral estoppel barred Malm’s claims. The district court also
found that, even assuming collateral estoppel did not apply, Malm’s
claims were without merit. Malm filed a timely appeal of that
order.
Shortly before oral argument in this case, however, Congress
enacted the REAL ID Act of 2005 § 106, Pub. L. No. 109-13, 119
2
At the time of the district court’s order, this legal
conclusion was likely erroneous. See INS v. St. Cyr, 533 U.S. 289,
314 (2001) (noting “habeas jurisdiction under § 2241 was not
repealed by AEDPA and IIRIRIA.”); see also Riley v. INS, 310 F.3d
1253 (10th Cir. 2002) (holding § 2241 petitions remain available
for non-criminal aliens); Liu v. INS, 293 F.3d 36 (2d Cir. 2002)
(same); Chmakov v. Blackman, 266 F.3d 210 (3d Cir. 2001) (same).
6
Stat. 231, 310-311 (May 11, 2005) (to be codified as amendments and
notes to 8 U.S.C.A. § 1252).3 The REAL ID Act provides that
petitions for review in circuit courts are to be the exclusive
means of judicial review in the immigration context, and it
expressly states that district courts shall not have habeas
jurisdiction. Id. at § 106(a)(1)(A)(iii). The Act applies to any
“final administrative order of removal, deportation, or exclusion
. . . issued before, on, or after the date of enactment of this
division.” Id. at § 106(b). The Act also provides that any § 2241
petition currently pending in the district courts be transferred to
the proper court of appeals and treated as a petition for review.
Id. at § 106(c). Although review of the denial of Malm’s § 2241
petition was actually pending before us at the time of enactment,
the parties agree that we may, under the transfer provisions of the
Act, treat Malm’s action as a petition for review. Accordingly, we
will treat Malm’s action as a petition for review of her final
order of removal. We deny the petition, however, because of
collateral estoppel.
II.
Collateral estoppel, or issue preclusion, bars subsequent
litigation of legal and factual issues common to an earlier action
3
Upon our request at oral argument, the parties provided
supplemental briefing on the potential impact of the REAL ID Act on
this case.
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that were “actually and necessarily determined” in the first
litigation. Montana v. United States, 440 U.S. 147, 153 (1979);
Combs v. Richardson, 838 F.2d 112, 114 (4th Cir. 1988). Thus,
“[c]ollateral estoppel forecloses the relitigation of issues of
fact or law that are identical to issues which have been actually
determined and necessarily decided in prior litigation in which the
party against whom [collateral estoppel] is asserted had a full and
fair opportunity to litigate.” Sedlack v. Braswell Servs. Group,
Inc., 134 F.3d 219, 224 (4th Cir. 1998) (internal quotation marks
omitted). To apply collateral estoppel or issue preclusion to an
issue or fact, the proponent must demonstrate that (1) the issue or
fact is identical to the one previously litigated; (2) the issue or
fact was actually resolved in the prior proceeding; (3) the issue
or fact was critical and necessary to the judgment in the prior
proceeding; (4) the judgment in the prior proceeding is final and
valid; and (5) the party to be foreclosed by the prior resolution
of the issue or fact had a full and fair opportunity to litigate
the issue or fact in the prior proceeding. See id.A related doctrine is that of claim preclusion, also referred
to as res judicata. Claim preclusion provides that if a claim
arises from the same cause of action as a claim already litigated,
then the judgment in the first action bars litigation of the second
claim. See Nevada v. United States, 463 U.S. 110, 129-30 (1983).
Thus, “[a] final judgment on the merits of an action precludes the
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parties or their privies from relitigating issues that were or
could have been raised in that action.” Federated Dep't Stores,
Inc. v. Moitie, 452 U.S. 394, 398 (1981). For claim preclusion to
apply, there must be: (1) a final judgment on the merits in a prior
suit; (2) an identity of the cause of action in both the earlier
and the later suit; and (3) an identity of parties or their privies
in the two suits. See Nash County Bd. of Educ. v. Biltmore Co., 640
F.2d 484, 486 (4th Cir. 1981).
With this framework in place, we turn to Malm’s claims.
Malm’s first contention - that § 3.2(c)(2), the regulation limiting
the ability to file more than one motion to reopen, violates both
CAT and FARRA – is clearly barred by collateral estoppel. This
claim is an exact reproduction of her argument before this court in
her initial petition for review.
Malm makes two arguments to counter this conclusion, both of
which lack merit. First, Malm contends that our discussion of this
claim in the earlier case was dicta. She garners support for this
contention from the following sentence: “Further, we note that in
passing a resolution of ratification, the United States Senate
specifically stated that articles one through sixteen of CAT are
not self-executing.” Malm, 2001 U.S. App. LEXIS at **11.
According to Malm, the phrase “in passing” is an indication that
this portion of the opinion is dicta. This argument misunderstands
the grammatical structure of the sentence -- the phrase “in
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passing” refers to the Senate’s adoption of the CAT and does not
signal that the analysis is dicta.
Next, Malm argues that we lacked the ability to consider
statutory claims in her initial petition for review because our
task is to review BIA orders and the BIA lacks the ability to
consider those claims. Again, this argument is without merit; we
frequently address statutory and constitutional arguments in
petitions for review that are beyond the BIA’s scope of review.
See, e.g., Blanco de Belbruno v. Ashcroft, 362 F.3d 272 (4th Cir.
2004) (addressing statutory and constitutional challenges to BIA’s
streamlining procedure). And, in fact, we did carefully consider
Malm’s statutory argument in the prior petition for review. See
Malm, 2001 U.S. App. LEXIS at **10-14.
Malm’s second claim in her current action is that her due
process rights were violated because she was not permitted to
present her claims under the CAT. Our earlier opinion contains no
direct mention of “due process,” but we did iterate that Malm’s
first argument was “that she was not given an opportunity to pursue
her claim.” Id. at **7. We rejected this argument by finding
“Malm repeatedly missed available opportunities to pursue her
claims.” Id. at **9-10. Although this quoted portion from the
opinion does not explicitly use the term “due process,” it is clear
that due process was the basis for the argument Malm was pressing
before this court, and that our resolution of the issue was based
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upon the fact that Malm received the process she was due.
Moreover, even assuming that collateral estoppel does not bar this
claim, because the argument that Malm’s due process rights were
violated stems from the same cause of action as her statutory and
treaty-based contentions, it would be barred by claim preclusion.
III.
In sum, we treat Malm’s appeal as a petition for review, and
deny that petition for review as barred by collateral estoppel.4
PETITION FOR REVIEW DENIED
4
We do note, in passing, that Malm has raised several
constitutional challenges to the REAL ID Act in her supplemental
briefing. Because Malm is a non-criminal alien who already has had
a full opportunity to litigate her claims in an earlier proceeding,
her case does not require us to delve into any sticky
constitutional issues. We by no means suggest, however, that the
REAL ID Act is constitutional in all of its applications by
referring to its enactment in the context of deciding this case.
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